{
  "id": 8651834,
  "name": "THE STATE v. ROANOKE RAILROAD AND LUMBER COMPANY",
  "name_abbreviation": "State v. Roanoke Railroad & Lumber Co.",
  "decision_date": "1891-09",
  "docket_number": "",
  "first_page": "860",
  "last_page": "863",
  "citations": [
    {
      "type": "official",
      "cite": "109 N.C. 860"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
  "analysis": {
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  "last_updated": "2023-07-14T20:47:39.876308+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "THE STATE v. ROANOKE RAILROAD AND LUMBER COMPANY."
    ],
    "opinions": [
      {
        "text": "Mekrimon, C. J.\n(after stating the facts): Accepting the evidence of the single witness for the State as true, there was a substantial variance between the charge as laid and the proof. The charge was the obstruction of the public road mentioned \u201c by placing in and across it certain plank \u201d at the place specified. The proof was, in substance, that a dangerous hole in the crossing was permitted to be and continue for a week or two, occasioned by the slipping down of a plank from its place. The constituent facts charged were widely different in their substance and meaning from those proven. The indictment charged one offence, that proven was, in substance, as to the constituent fact, a distinct and different one. In such case, the Court should direct the jury to render a verdict of not guilty.\nWe are further of opinion that no offence is sufficiently charged in the indictment.\nThe defendant is a railroad company, and constructed its railroad across the public road specified in the indictment. This it had the right to do in such way and manner \u201cas not to impede the passage or transportation of persons or property along the same,\u201d restoring such road so crossed \u201cto its former state or to such state as not unnecessarily to have impaired its usefulness.\u201d The Code, \u00a7\u00a7 1710,1957, \u00b6\u00b6 5, 20, 54. In constructing such crossing, it might appropriately and reasonably use plank, timber, earth, etc., to make the same such as the statute allows and intends, and as the public ease, convenience and safety require. It might lawfully use such things in forming and securing the incline on each side of the railroad track, so as to provide an easy and safe passway across it for carriages, wagons, horses, etc.\nIt was not, therefore, unlawful per se for the defendant to use plank about the crossing in question. Hence, the indictment ought to charge appropriately the misuse or misapplication of the plank in placing it across the public road at and about the crossing in such way and manner as to constitute the offence of obstructing the public road, or that the same was allowed by the defendant to become ruinous, out of repair, and in such unlawful condition as to constitute the offence. The material facts should be charged with such fullness as to show the complete offence.\nIn this case the offence is not so charged. Indeed, no offence is sufficiently charged. How the plank was misused or misapplied at the crossing does not appear, nor is it charged that the defendant suffered it to become ruinous, out of repair and in such improper condition as to obstruct the public road. The Court ought, therefore, to have quashed the indictment before the defendant pleaded. Or failing to do that, it should, after verdict, have arrested the judgment. The counsel of the defendant in this Court insists that the judgment of the Court below should be reversed and judgment there arrested. We are of that opinion, and so direct. The Court seeing the whole record, including the indictment, should have entered such judgment as in law ought to have been rendered thereon. That it did not, is error. Although a motion in arrest of judgment was not made in the Court below, it may be made here, because this Court sees the whole record and takes notice of errors appearing in the record proper, though not regularly assigned in the Court below. It must appear from the record that, in some aspect of it, the judgment rendered is warranted. Here it does not appear that any offence is charged. The trial and verdict were immaterial and nugatory.\nJudgment arrested.",
        "type": "majority",
        "author": "Mekrimon, C. J."
      }
    ],
    "attorneys": [
      "The Attorney General and Mr. G. F. Warren, for the State.",
      "Mr. J. H. Small, for defendant."
    ],
    "corrections": "",
    "head_matter": "THE STATE v. ROANOKE RAILROAD AND LUMBER COMPANY.\nObstructing Highway \u2014 Railway Crossing \u2014 Indictment\u2014 Variance \u2014 Arrest of Judgment in Supreme Court.\n1. An indictment charging a railroad company with obstructing a public road by the use of plank at a crossing, is fatally defective if it does not charge the manner of the misuse of the plank, as plank may be used for such a purpose.\n2. It is a fatal variance in an indictment for obstructing a highway at a railroad crossing, to pro^e that the defendant permitted for some time a dangerous hole to remain in the crossing.\n8. Judgment will be arrested in the Supreme Court if the indictment is defective, although no motion in arrest was made in the Court below.\nCRIMINAL action, tried before Bryan, J., at May Term, 1891, of Beaufort Superior Court.\nThe defendant is indicted for obstructing a public road. The indictment charges that he \u201c unlawfully and wilfully did obstruct said public road by placing in and across it certain plank where the road of said corporation (the defendant) crossed the said public road, so that the good citizens of the State could not, nor cannot now, cross and recross over said public road with their teams, as they were accustomed to pass and repass, and so continues to impede and obstruct said road, to the common nuisance,\u201d etc.\nThe defendant pleaded not guilty.\nOn the trial but one witness was examined, and the material parts of his testimony were, that \u201c the defendant\u2019s road crosses this public road ; the company did not have \u00e9nough plank; it was elevated eight or ten inches above the public road; between the track of the defendant\u2019s road and the platform which sloped to the track was a hole. This hole was eight to ten inches deep from top to bottom ;|it was not safe for teams. I think the elevation above the public road was eight or ten inches \u2014 -might have been less. The hole was on the north side of defendant\u2019s road ; the hole was there about April or May, 1890; the plank had slipped down, leaving the hole; the plank was well up to the railroad, when I first saw it; the lumber road\u2019was not down there more than two or three months before I saw it; it was there some time before there was any hole; the hole was as much as four inches wide.\u201d\nThere was a verdict of guilty, and judgment for .the State. The defendant, having excepted, appealed to this Court. .\nThe Attorney General and Mr. G. F. Warren, for the State.\nMr. J. H. Small, for defendant."
  },
  "file_name": "0860-01",
  "first_page_order": 894,
  "last_page_order": 897
}